In a previous posting, utahwaterlaw.com reported on concerns voiced by the Environmental Protection Agency (“EPA”) to the Utah Legislature over now-passed SB 110, titled “Water Quality Amendments,” which the EPA warned that SB 110’s peer review proposal violated the Clean Water Act(“CWA”). In a letter to the Utah Legislature, the EPA noted that SB 110’s plan to subject Utah Division of Water Quality actions to an independent peer review did not comply with the CWA. The letter further stated that if the law was passed without any changes, then the federal government might step in to manage water in Utah.

Peer Review Legislation Passes Despite EPA Warning

Despite a warning from the EPA, SB 110 was passed into law following the 2016 legislative session. SB 110 “establishes an independent peer review process for challenges made to proposals from the Division of Water Quality; and establishes the requirements, including selecting the panel of independent experts,” among other things.

With the passage of SB 110, Utah became the third state – joining Minnesota and California – to pass legislation on scientific review of administrative rulemaking. However, neither the legislation passed in Minnesota nor California, go nearly as far as SB 110. Essentially, SB 110 allows challenges of “pretty much any activity, rule, standard or initiative” from the Division of Water Quality or the Water Quality Board, said Walt Baker, DWQ director. “We’re breaking some ground here that has not been broken before,” he said.

Peer Review Legislation Allows “Pay-for-Play” Rulemaking

The primary impact of SB 110 is that it allows stakeholders to pay to challenge the science behind water regulations proposed by the Division of Water Quality. Once a decision is challenged, a three-person panel made up of scientists selected by both the challenging party and the Division of Water Quality determines whether the action is scientifically defensible. If the panel determines that the action is not scientifically defensible, then the Division of Water Quality may not be allowed to proceed on its rule.

Leland Myers, Central Davis Sewer District manager and the chief spokesman for the coalition of water managers who drafted the original bill, heralded the plan as one that would benefit citizens and make state regulators more thorough in their science.

“The biggest benefit is that it allows for a review and makes everyone a little more cautious to make sure they follow good science,” he said. “I think the bar is set high enough that it won’t be used frivolously.”

As noted, an especially important portion of SB 110 requires that those challenging the Division of Water Quality action to pay all expenses associated with the peer review, which is estimated to cost approximately $65,000 per year. This “pay-for-play” type rulemaking has created the most controversy, and has prompted some environmental groups to petition the EPA to block the “Water Quality Amendments.”

Environmental Groups Petition EPA Over Peer Review Legislation

Earlier this month, more than half a dozen environmental groups filed a petition asking the EPA to revoke Utah’s authority to administer portions of the CWA. In their letter, the groups, headed by Friends of the Great Salt Lake, told the EPA that the passage of SB 110 directly undermines the ability of the Division of Water Quality to enforce the CWA by way of the new peer review system. The letter argues that the law is a covert attempt to legalize “pay-for-play” rule-making, which the groups say impermissibly allows only those with deep pockets to challenge water quality decisions.

Rob Dubuc, an attorney with Western Resource Advocates, which is representing Friends of the Great Salt Lake, called the peer review statute unprecedented and offensive.

According to the petition, the statute violates federal law by creating potential scenarios where the peer review panel could trump federal mandates by restricting the public’s access to water-quality decisions and circumventing the judicial system.

EPA Can Overtake CWA Enforcment if DWQ is Unwilling or Unable to Fulfill Duties

The EPA authorizes the Division of Water Quality to oversee and enforce provisions of the CWA under what is essentially a contractual partnership. In the event the EPA determines that the Division of Water Quality is unwilling or unable to fulfill its responsibilities, the EPA may revoke the Division of Water Quality’s administrative authority and take over the management of CWA programs in Utah — including the authority to issue water quality permits.

There are currently only four states that have not delegated authority under the CWA, Baker said, and one of those — Idaho — is currently seeking delegation.

Utah Lawmakers Warned of “Gaps” in Peer Review Legislation

Baker said he warned lawmakers during the session that the statute had some “gaps relative to public participation” that had drawn scrutiny from the EPA. Baker said he hopes that the Division of Water Quality will be able to craft administrative rules to fill in the “holes” and appease both the EPA and the environmentalists.

Baker said he began drafting such rules while the statute was still being discussed, and has already shared them with some stakeholders. Baker expects to introduce the rules to the state Board of Water Quality next month.

But Duboc said he is skeptical that administrative rules will be able to go far enough to remedy the “fundamental flaws” of SB 110. The environmental groups he represents are not unhappy with the Division of Water Quality, Duboc said, and don’t necessarily believe the EPA would be any better at preserving Utah’s waters.

“No one wants EPA to come in and take over this program,” Duboc said. “EPA doesn’t want that, the state doesn’t want that, and we don’t necessarily want that, but this legislation backs us into a corner. … One way or the other, this peer review panel has to go away. If that takes the EPA coming in and running the program, so be it.”

While it is unclear whether the environmental groups would support the Division of Water Quality action challenge process without the pay-for-play provision, it is clear that as it stands currently, the “Water Quality Amendments” are not amenable. The environmental groups’ petition raises the question whether it is fair to allow only those that can afford it can challenge water quality decisions, or if the legislation was passed to allow rich companies or other potential polluters to pay for scientific peer review of water quality actions. The EPA has said that is has received the petition and is in the process of reviewing the petition. Utahwaterlaw.com will continue to follow this story as it unfolds.

In April 2015, Erica Gaddis, Assistant Director of the Utah Division of Water Quality (“DWQ”), sent a memo to its agency and stakeholder water quality partners announcing that “DWQ is organizing a Water Quality Health Advisory Panel whose objectives are to coordinate and communicate on water quality issues associated with specific public health concerns.”

DWQ Issues Memo Regarding Water Quality Health Advisory Panel

The DWQ memo said that the initial primary focus of the Water Quality Health Advisory Panel would be “coordination around E. coli, mercury, and harmful Algal Blooms (HABs).” However, the DWQ said it expected that other issues would come up in the future, which would be appropriate for the panel to address. The formation of the Water Quality Health Advisory Panel necessarily required dissolution and consolidation of the existing E. coli workgroup, Mercury workgroup, and ad hoc HABs workgroup. “Combining these groups into a single advisory panel will be more efficient by eliminating overlap among members of the workgroup,” the memo said. “Also, it will help ensure that solutions to these interrelated problems are more consistent.”

Objectives of the Water Quality Health Advisory Panel

The memo then went on to address the specific objectives of the Water Quality Health Advisory Panel, including:

Develop or refine, as necessary, water quality indicators, monitoring strategies, and assessment methods related to water quality issues that have human health implications. Work with DWQ’s Water Quality Standards workgroup on numeric standards, as appropriate.

Develop consistent statewide policies outlining actions to be taken if/when indicators suggest threats to recreation and drinking water uses as well as threats to wildlife, livestock, and pets.

Further develop the fish consumption advisory methodology, specifically how to manage annual variability of mercury concentrations at a waterbody and when to remove an advisory if the data indicate there is no longer a public health risk.

Communicate a unified message regarding public health risks associated with specific events based on a comprehensive review of the data and relevant literature.

Review public information materials, including fact sheets, pamphlets, advisory notices, and website content to inform the public about health advisories and closures of recreational waters.

Identify and prioritize research to better understand risks to human health, livestock, and wildlife, or to solve water quality problems that are currently known.

Water Quality Health Advisory Panel to Meet in Spring and Winter

The memo then concludes with a logistics section regarding how the Water Quality Health Advisory Panel would operate and who would be members in the advisory panel. The panel will convene twice a year, once in the spring and once in the winter, according to the memo. The purpose of the spring meeting is to recommend monitoring locations and review coordination processes in the event of a health related water quality event, whereas the purpose of the winter meeting is to review the data collected during the summer monitoring season and any public advisories that were subsequently identified. Any process improvements related to health related advisories will also be identified for work over the winter season.

First Meeting Held in July 2015

The first meeting of the new Water Quality Health Advisory Panel was held on July 29, 2015. The goals for the first meeting were to:

Formalize and clarify the role of the Water Quality Health Advisory Panel and how we will do business.

Ensure that all panel members are familiar with agency roles and responsibilities for ongoing water quality and human health related issues.

Scientists Warn of Risks of Poisonous Algal Blooms

According to an article from the Salt Lake Tribune, at the July meeting of the Water Quality Health Advisory Panel, scientists warned that 44 percent of Utah’s waterways — including several drinking-water sources — are at risk of developing poisonous algal blooms. The most common of the harmful algae, said Craig Dietrich, an environmental epidemiologist for the state department of health, produce toxins that damage the liver.

Less common algae produce neurotoxins, including a toxin known as Anatoxin-a. Before it was fully understood, Dietrich said, scientists called Anatoxin-a “very sudden death factor,” because the toxin, which is capable of causing respiratory failure in as little as 20 minutes, breaks down extremely quickly in the environment and is difficult to detect.

Most people understand that it’s unwise to drink stagnant water, Dietrich said, so the toxins don’t pose a huge risk to humans. But livestock and pets — especially dogs — are another matter. “Dogs love to get into things that are strange and smelly,” he said. “And they consistently will drink surface waters that you let them get into.” Two dogs died after being exposed to Utah Lake water on Oct. 4 and 5 of last year. At the time, toxins in some samples taken from the lake’s Lindon Marina were 70 times World Health Organization advisory levels.

Second Meeting Held in March 2016

In March 2016, the Water Quality Health Advisory Panel held its second meeting. The goals for the March meeting were:

Provide updates to attendees on water quality health advisories from 2015

Discuss 2016 sampling and communications plans

Establish a work group to address assessment method revisions for E. coli, HABs and mercury